American history has a reputation for attempting to use legal frameworks as exclusionary controls, which is why the recent energy behind discriminatory “bathroom bills,” while disappointing, is not surprising. The women’s suffrage movement, the fight for civil rights, and contemporary human rights advocates know all too well the discrimination cemented in law.
Following the recent progressive realization of laws in the U.S. protecting the rights of the nation’s LGBT+ community (marriage equality being the achievement that captured the most attention) a wave of restrictive legislation has served as the opponents’ response. In this vein, many cities and states have attempted to pass bills that would prohibit transgender individuals from using restrooms that match their gender identity. In doing so these states target an even more vulnerable group than the gays and lesbians who championed marriage equality, as transgender individuals often wield even less overt influence over American institutions.
The campaign to enact anti-transgender laws is not only discriminatory, but also uses misleading and factually incorrect arguments under the guise of public safety and privacy. Perhaps the most cited rationale for barring transgender individuals from using restrooms that match their identity is the belief that some people may cheat the law to commit a sexual offense. The attempt and subsequent failure to pass anti-discriminatory protections in Houston used fear-mongering in its television commercials, saying that “even registered sex offenders could follow women or young girls into the bathroom. And if a business tried to stop them, they’d be fined. Protect women’s privacy. Prevent danger. Vote no on the Proposition.” Meanwhile, school districts that have already implemented policies protecting transgender students have never encountered instances of individuals temporarily claiming a gender identity solely to access a bathroom or locker room. California’s School Success and Opportunity Act (AB 1266) stands as a model for inclusion and equality in the U.S. The bill, which came into effect in January of 2014, proactively requires schools to permit students to engage in activities and access facilities that are “consistent with [their] gender identity, irrespective of the gender listed on the pupil’s records.”
The legal and psychological effects of the bathroom bills, most recently passed in the states of North Carolina and Mississippi, are damaging and deplorable. While trips to the bathroom are a trivial element of a cisgender (alignment between gender identity and assigned sex at birth) person’s daily routine, the opposite is often true for a transgender individual. According to a UCLA study of transgender individuals, 18% reported simply being denied access to a bathroom. Another recent study of transgender students revealed deeply troubling statistics with an astronomically high 70% of respondents reporting problems with “access, harassment, or assault.” The same study found that 15% of transgender students were driven to drop out of school due to harassment at some point in their lives. If we look even more closely at the marginalization of transgender people, we see that there were more American transgender homicide victims in 2015 than any other year previously recorded; in addition, nearly half of all black transgender people will statistically spend time in prison at some point in their lives. These injustices are likely driven by the poverty, homelessness, and participation in informal economies that comes with being discriminated against in mainstream society.
It doesn’t stop there. There are states that require an individual to undergo gender reassignment surgery in order to change their legal gender and use the restroom that aligns with it. Not only do such laws reinforce a misinformed, outdated, and inadequate understanding of gender, they also disenfranchise many transgender individuals who choose not to undergo gender reassignment surgery for a variety of reasons, including health and financial concerns, or simply because they don’t want to.
The psychological, emotional, and physical effects of discrimination are reason enough for cities and states to become seized of the issue and search for effective ways to defend the rights of the transgender community. Fortunately, in at least sixteen states that have waged attacks against the LGBT+ community by attempting to pass discriminatory restroom legislation, bathroom bills have failed. Yet, proposals for bathroom bills are becoming increasingly mainstreamed. In recent months there has been a flurry of activity and support that enabled states like North Carolina and Mississippi to successfully pass discriminatory legislation. While there has been public backlash (PayPal and Deutsche Bank backtracking on investment plans, and America’s biggest cities banning city-funded travel to either state), the fight doesn’t end here. The states of Missouri and South Carolina have legislation pending that would bar transgender individuals from using the bathroom that matches their gender. If North Carolina and Mississippi are any evidence of the direction of this exclusionary movement, potential bathroom bills in other states pose a real and increasing threat to people’s safety. Rather than a case of some fringe conservative groups trying to tack bills onto their legislative CVs, this is beginning to look like a growing movement looking to strip the LGBT+ community of their human rights.
The distressingly painful irony behind the recent slew of bathroom bills is that transgender individuals are the ones already being harassed and assaulted in bathrooms. While there are exactly zero crimes reported to have been committed by transgender individuals in bathrooms that match their gender identity, 9% of transgender individuals in the UCLA study reported being physically assaulted in bathrooms. These statistics have led some commentators to wryly suggest that the few known cases of impropriety and lewd sexual conduct by politicians in bathrooms should be a source of greater public concern.
While many efforts to pass legislation in the United States that would discriminate against the transgender community have failed to succeed, there are still legislative initiatives in the making. Two states either have bathroom bills in committee or are set to vote on them soon. State governments, NGOs, and activists would do well to consider the model of AB 1266 in California as a safeguard against discriminatory policies moving forward. If a shared goal of the same basic human rights for all US citizens seems too aspirational, then let common sense and evidence guide us towards adopting policies that protect our neighbors, regardless of personal beliefs and preferences. States looking to imitate North Carolina and Mississippi are placing the lives of their residents and our fellow citizens in danger. When arguments against equality are met with level-headed responses and solutions, we can get serious about safety and put the political parade behind us.
The current state of bathroom bills in the United States
A similar article was originally published by the author in the 22 April, 2016 issue of Streetvibes (Cincinnati, USA)
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